Hardwick v State of New York

2011 NY Slip Op 09179 [90 AD3d 540]

Dcmbr 20, 2011

Appellate Division, First Department

As corrected through Wednesday, February 1, 2012

Lamar Hardwick et al., Appellants, v State of New York,Respondent.

—[*1]Andrew H. Rosenbaum, New York, for appellants.

Eric T. Schneiderman, Attorney General, Albany (Paul Groenwegen of counsel), forrespondent.

Judgment of the Court of Claims of the State of New York (W. Brooks DeBow, J.), enteredJanuary 6, 2010, after a nonjury trial, upon a finding that the injured claimant was 75% at faultand defendant 25% at fault, unanimously modified, on the facts, to apportion liability 60% toclaimant and 40% to defendant, and otherwise affirmed, without costs.

Since the trial court's apportionment of liability was based on a credibility determination, ourreview is limited to whether the court arrived at its conclusion by means of a fair interpretation ofthe evidence (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60NY2d 492, 499 [1983]; Green vWilliam Penn Life Ins. Co. of N.Y., 74 AD3d 570, 571-573 [2010, Saxe, J.,concurring]; see also Watts v State ofNew York, 25 AD3d 324 [2006]). The record supports the finding that claimant bearssome responsibility for his injuries. However, it does not support the finding that the dangerouscondition was open and obvious. Thus, we modify the apportionment accordingly.Concur—Gonzalez, P.J., Mazzarelli, Andrias, Sweeny and RomÁn, JJ.